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서울고등법원 2014. 10. 8. 선고 2013나2010367(본소), 2013나2010374(반소) 판결
[손해배상(기)·매매대금반환][미간행]
Plaintiff (Counterclaim Defendant), appellee and appellant

Bankruptcy Debtor Co., Ltd., a bankruptcy debtor company 21st century conciliation division, the bankruptcy debtor company 21st century conciliation division, the bankruptcy trustee, non-party 1 (Law Firm Mapyeong, Attorneys Kim Dak-hee et al.

Defendant, Appellant

2. 2. 2. 2.2

Defendant Counterclaim Plaintiff, Appellant and Appellant

KBF Capital Co., Ltd. (Law Firm Squa, Attorneys Su-man et al., Counsel for the defendant-appellant)

Conclusion of Pleadings

June 25, 2014

The first instance judgment

Seoul Central District Court Decision 2012Da513903, 534832 (Counterclaim) Decided April 24, 2013

Text

1. The plaintiff (Counterclaim defendant)'s appeal is dismissed.

2. The defendant-Counterclaim plaintiff's counterclaim that is changed in exchange at the trial is dismissed.

3. The costs of the lawsuit after the appeal shall be borne by each person.

Purport of claim and appeal

1. Purport of claim

(a) Main claim;

The Plaintiff (Counterclaim Defendant, Counterclaim Plaintiff, and hereinafter “Plaintiff”) confirmed that there does not exist any obligation to return advance payments for the shipbuilding contract for each of the annexed Table 1 to the Defendant (Counterclaim Plaintiff), the Plaintiff (hereinafter “Plaintiff”) to the Plaintiff (hereinafter “Defendant DF Capital”). The Defendant CW wing Pwing She (hereinafter “Defendant CW”) paid the Plaintiff 10 million won per annum from October 8, 2010 to the delivery date of a duplicate of the instant complaint, and the amount calculated by 20% per annum from the next day to the day of complete payment.

(b) Counterclaim;

The bankruptcy claim against the plaintiff of the defendant KF Capital is determined to be KRW 17,795,610,01 (the defendant KF Capital claims the return of the purchase price already paid following the cancellation of the contract, and the plaintiff's bankruptcy was changed in exchange for the lawsuit at the trial after the judgment of the court of first instance was rendered).

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance, the part concerning the Defendant wing is revoked. The same judgment as the claim for the Defendant wing is sought.

(b) Defendant KF Capital;

Of the judgment of the first instance, the part against Defendant KF Capital shall be revoked. The Plaintiff’s main claim against Defendant KF Capital shall be dismissed. The Plaintiff’s judgment, such as the Plaintiff’s counterclaim claim, is sought against the Plaintiff.

Reasons

The principal lawsuit and counterclaim shall be judged together.

1. Basic facts

A. Status of the parties

In the 21st century shipbuilding Co., Ltd. (hereinafter “Plaintiff”) prior to bankruptcy (as seen below, after bankruptcy on June 17, 2013, the Plaintiff was appointed as a trustee in bankruptcy; hereinafter the same shall apply), the company is a shipbuilding company for the purpose of building vessels, etc., without distinguishing between the company of the 21st century and the Plaintiff. The Defendant wing concluded a shipbuilding contract with a shipbuilding company, which is a special purpose corporation established in the UK, and then transfers the shipbuilding contract to the end-user. The actual shipbuilding owner of the Defendant wing was the Defendant wing’s de facto vessel owner located in Thailand, and Nonparty 3, its representative, the Plaintiff’s five major shareholders, is a director of the company of the eth century, egretirie Ltd. (hereinafter “Segre”).

B. The Plaintiff’s construction contract and its accessory agreement

1) On June 14, 2007 and October 22, 2007, the Plaintiff entered into each shipbuilding contract (Sefiner Efinc, hereinafter referred to as the “Sefinc,”) and entered into each shipbuilding contract (Wve Efin Efinc, hereinafter referred to as the “Wve Efin”), and concluded each shipbuilding contract (Wve Efin’s weight tonnage, Deadice’s chemical product shipping vessel), and concluded each shipbuilding contract (hereinafter referred to as the “Sfincin”), and concluded each shipbuilding contract (hereinafter referred to as the “Sfincincinc,”) with Defendant 2 as follows. However, the Plaintiff paid each of the instant contracts with Defendant 10 GM as the payment for each of the instant vessel’s advance payment to Defendant 10 GM as follows.

R/G issuance date (CSN-264,000,000 November 30, 2010, 30 on June 14, 2007, 30,000 CSN-2626,00,000 on August 28, 2007, 207 (CSN-2625,000,000, 207. 8. 207. 18. 20,000 on August 28, 2007, 30,000,000 on August 28, 2007 (Defendant CW-207. 20, May 28, 2008) LW-20, 207, 205. 3. 8. 8. 205. 205. 205. 207. 14. 2008.

2) The main contents of each shipbuilding agreement on the payment of prices and vessel delivery are as follows. The building contractor, except for the approval of design drawings, refers to the Plaintiff, the buyer, the buyer, and the Plaintiff, and the buyer, the wing, the wing, and the wabin.

본문내 포함된 표 3. 계약금액의 조정(Adjustment of Contract Price) 매매대금은 아래와 같은 사정이 발생하는 경우 다음에서 명시하는 바와 같이 조정된다. 본 항목에 의하여 조정되는 매매대금은 위약벌(penalty)이 아니라 손해배상의 예정(liquidated damage)이다. (a) 선박 인도 지연 (ⅲ) 이 계약에 따른 인도일로부터 180일이 넘는 기간 동안 인도 지연이 계속되는 경우, 선박 매수인(Buyer)은 위 180일 이후 선택에 따라 문서, 이메일, 팩스를 통하여 당시까지 발생한 손해배상 예정액에 대한 권리에 영향 없이 본 계약을 취소하거나 해제할 수 있다. 이와 같은 취소 또는 해제는 건조자(Builder)가 그 통지를 수령한 날로부터 효력이 있다. 건조자는 위 통지를 받는 즉시 신속하게 매수인으로부터 지급받은 분할금에 제10조 (f)항에 따른 이자를 가산한 금액을 달러화로 송금해야 한다. 이와 같은 반환을 위한 송금 기타 은행 수수료는 건조자의 부담으로 한다. 8. 인도지연과 기간 연장(Delays and Extensions of Time) (불가항력)(Force Majeure) (c) 현저한 인도지연을 이유로 한 계약 취소(Right to Cancel for Excessive Delay) 본 계약에 따라 허용되는 경우이든 그렇지 않은 경우이든, 총 180일을 초과하여 선박의 인도가 지연되는 경우 (ⅰ) 중재절차로 인하여 인도가 지연되거나, (ⅱ) 성질상 매수인의 채무불이행(Buyer's default of a nature)으로 인하여 본 약정에 따라 인도일이 연장되거나, (ⅲ) 제5조에 의하여 인도일이 변경되거나, (ⅳ) 매수인에 의하여 공급되어야 하는 물품의 인도가 지연되는 경우를 제외하고는, 매수인은 그때로부터 언제든지 건조자에게 서면으로 취소 통지를 함으로써 본 계약을 취소할 수 있다. 10. 매매대금의 지불(Payment) (a) 통화 본 계약에 따른 모든 지급은 달러화로 이루어진다. (b) 지급일(Terms of Payment) 매매대금의 분할지급과 그 지급일은 다음과 같다. (ⅰ) 1차 분할금 매매대금의 20%로서 500만 달러인 1차 분할금은 건조자가 매수인에게 한국수출입은행, 한국산업은행 또는 대한민국의 다른 제1금융권 은행이 별지 A에 따른 환급보증서(Refund Guarantee)를 발행하였고, 그 사본이 위 통지에 첨부되어 있다는 사실을 팩스로 통지한 날로부터 45 은행 영업일 이내에 지급되어야 한다. (ⅱ) 2차 분할금 매매대금의 20%로서 500만 달러인 2차 분할금은 강재절단시(upon steel cutting of the vessel) 지급되어야 한다. (ⅲ) 3차 분할금 매매대금의 20%로서 500만 달러인 3차 분할금은 용골거치시(upon keel laying) 지급되어야 한다. (ⅳ) 4차 분할금 매매대금의 20%로서 500만 달러인 4차 분할금은 진수시(upon launching) 지급되어야 한다. (ⅴ) 5차 분할금 매매대금의 20%로서 500만 달러인 5차 분할금은 인도시(upon delivery) 지급되어야 한다. 당사자 사이의 어떠한 분쟁에도 불구하고 매수인은 이를 이유로 분할금의 지급을 연기하거나 유보할 수 없다. (c) 지급방법(Method of Payment) (ⅱ) 2차 분할금 매수인이 건조자로부터 강재절단이 이루어졌다는 이메일 또는 팩스를 받은 날로부터 3영업일 이내에, 매수인은 선급협회(Classification Society)가 서명한 건조자의 강재절단 확인서를 제공받고 건조자의 은행 계좌로 2차 분할금을 송금하여야 한다.(주1) (e) 지급 요청(Demand for Payment) 1차 분할금을 제외하고 건조자는 적어도 본 계약상 지급일 14일 전에 매수인에게 이메일 또는 팩스로 각 분할금의 지급일이 도래하였음을 알려야 한다. (f) 인도 전의 지급(Payment prior to Delivery) 매수인이 건조자에게 선박의 인도일 이전에 지급하는 각 금액은 건조자에 대한 선수금(advance)이다. 매수인이 건조자의 채무불이행 기타 사유를 이유로 본 계약 조항에 따라 선박의 인수를 거절하거나 본 계약을 종료시키거나 취소 또는 해제하는 경우, 제11조에 따라 건조자가 본 계약을 해제 또는 취소하는 경우를 제외하고, 건조자는 매수인에게 달러로 매수인으로부터 받은 총 금액에 이자를 가산한 금액을 반환해야 한다. 다만, 건조자가 제13조에 따라 중재절차를 진행하는 경우에는 그러하지 아니하다. 11. 매수인과 건조자의 채무불이행(Default by the Buyer and the Builder) 1. 채무불이행의 정의 매수인은 다음의 경우 채무불이행에 빠진 것으로 간주된다. (a) 1차부터 4차까지의 각 분할금이 각 지급일에 건조자에게 지급되지 않은 때 2. 선박 인도 전 또는 인도시 매수인의 채무불이행의 효과 매수인이 위 1항에 따른 채무불이행에 빠지는 경우, (a) 그 채무불이행에 발생한 실제의 기간만큼 자동적으로 선박의 인도일이 연장된다. 이 때 건조자는 이로써 발생하는 선박 인도 지연으로 인한 어떠한 손해배상 예정액 지급 의무도 없다. (e) 매수인이 구매자에게 위 채무불이행을 통지한 후 10 영업일 동안 매수인의 채무불이행 상황이 지속되는 경우 건조자는 그 선택에 따라 문서, 텔렉스, 케이블 또는 팩스에 의한 해제 통지로써 본 계약을 해제할 수 있다. (f) 매수인의 채무불이행을 이유로 건조자가 본 계약을 위와 같이 취소하는 경우, 건조자는 매수인이 이미 지급한 각 분할금을 보유하고, 이를 본 계약의 취소와 매수인의 채무불이행으로 인하여 발생한 손실과 손해(합리적으로 예상되는 수익을 포함하고, 이에 한정되지 않는다)에 충당할 권리가 있다. 동시에 건조자는 건조자의 단독 소유로 되는 본 선박의 건조를 완성하거나 완성하지 않고 적절하다고 인정되는 경우 이를 매도할 권리를 갖는다. 선박의 양도대금과 매수인이 지급한 분할금이 건조자의 손해와 손실에 충당되기에 부족한 경우, 매수인은 건조자의 청구에 따라 그 부족분을 지급할 의무가 있다.(주2) (c)(주3) 건조자의 채무불이행의 정의 건조자의 해산(dissolution) 또는 청산(winding up)에 관하여 법원의 명령(order) 또는 유효한 결의가 있는 경우(구조조정을 위한 인수, 합병의 경우를 제외한다), 또는 대한민국 법상 이에 상당한 사정이 발생하여 건조자가 본 계약에 따른 의무의 수행을 계속하는 것이 불가능하다고 인정되는 때 건조자는 채무불이행에 빠진 것으로 간주된다.(주4) (d) 건조자의 채무불이행의 효과 위 (c)항과 같은 채무불이행 사유가 발생한 경우, 매수인은 건조자의 채무불이행 사유가 발생한 날로부터 2주가 지나기 전에 즉시 건조자에게 서면으로 통지함으로써 본 계약을 해제하거나 취소할 수 있다. 위와 같은 해제는 건조자가 그 통지를 받은 때로부터 효과를 발생하고, 이 경우 제10조 (f)항이 적용된다. 매수인이 본 계약을 해제하지 않는 경우에도, 매수인은 적용 가능한 관련 법리에 따라 그 권리를 행사하고 구제를 요구할 수 있다.

Note 1).

Note 2).

Note 3) (c)

Note 4) shall be deemed to have been made.

3) On October 22, 2007, the Plaintiff and Defendant Cwing concluded a shipbuilding agreement with respect to the hull number CSN-264, 270, and 272 of the vessel, and the design and drawings of each of the above vessels were approved without any amendment or amendment to the Plaintiff’s design and drawings relating to the fleet number CSN-238, and when any amendment or amendment is required, the Plaintiff shall obtain approval from the buyer pursuant to Article 4(c)(iv) of the above shipbuilding agreement (hereinafter “instant subsidiary agreement”).

C. A loan agreement and a security transfer agreement between Defendant Cwing and Defendant Cwing Capital

1) On June 26, 2008, Defendant Cwing concluded a loan agreement (hereinafter “the instant loan agreement”) on the first installment payment ($2500,000,000) of each of the shipbuilding contracts with Korea (the trade name prior to the registration of change on March 28, 2014, Defendant CW Capital; hereinafter “Defendant CWP”) on June 26, 2008. According to the above loan agreement, Defendant CW was obligated to arrange for the re-sale of each of the shipbuilding contracts, but Defendant CW was obligated to pay the balance of the loans by the date of completion of the re-sale agreement (No. 7 evidence loan agreement, No. 6.1, 6.2, and 108, May 18, 2005).

2) In addition to the instant loan agreement on the same day, Defendant C-W and Defendant C-W Capital were liable for the performance of all the obligations under each of the instant shipbuilding contracts on the same day. However, Defendant C-W would transfer all the rights and interests held in the buyer’s position under the instant shipbuilding contract to Defendant C-W Capital as a security for the instant loan (Article 1-1 (No. 8) and 2.2). Defendant C-W would not modify or modify each of the instant shipbuilding contracts without the prior consent of Defendant C-W Capital (Article 4.4 (4) of the aforementioned collateral transfer contract). The term “the aforementioned collateral transfer contract” concluded a collateral transfer contract with the purchaser as a security for the instant loan, and obtained the Plaintiff’s consent thereto.

3) According to the instant loan agreement, Defendant Cwing borrowed USD 12,50,000 for the first installment of each of the instant shipbuilding contracts ($ 2,500,000 for each of the instant shipbuilding contracts) from Defendant CF Capital, and paid the Plaintiff the purchase price for each of the instant shipbuilding contracts to the Plaintiff as the first installment, fin, and wabin.

(d) Water-fwing failure by the buyer of the wing shipbuilding contract at the time of Defendant 2;

1) At the time of the conclusion of each of the above shipbuilding contracts, the vessel supply was not in line with the demand of the vessel, and the vessel supply was not in line. Accordingly, at the time of the conclusion of the above shipbuilding contract, the Defendant wing concluded each of the shipbuilding contracts with the Plaintiff and the first installment payments, and planned to transfer each of the above shipbuilding contracts to the acquirer for water, and the Plaintiff and the Defendant Dai Capital also knew of the aforementioned plan.

2) 그러나 2008년 하반기 이른바 리만 브라더스의 파산 사태로 촉발된 금융위기로 물류 이동량이 줄어 벌크선 운용에 따른 이익이 급격히 감소하게 되었고, 이에 피고 시윙이 중국 선사 시노쳄 그룹(Sinochem Group), 독일 선사 리겔(Rigel), 마린 서비스(Marine Service), 말레이시아 선사 시무아 쉬핑(Semua Shipping) 등 여러 나라의 선사와 접촉하였으나 인수자를 찾지 못하였다.

3) In the absence of the claimant, Defendant wing did not have the ability to pay the Plaintiff the payment after the second installment payments.

(e) Amendment to a shipbuilding contract.

1) On November 10, 2009, the Plaintiff and Defendant C-wing changed the contract for each of the above shipbuilding contracts to adjust the sales price and delivery date as follows (hereinafter referred to as “each of the shipbuilding contracts before and after the amendment,” except in cases where specifically distinguishing them from each of the above shipbuilding contracts.

CSN-264 18,00,000 on July 8, 2011, 201: CSSN-266 18,000,000 on August 22, 2011, on April 11, 2011, CSSN-267 18,000,000 on April 11, 2011, CSSN-270 18,000,00,000 on May 24, 2011, CSSN-272 18,000,000,000 on May 24, 201

2) As to the above amendment of the shipbuilding agreement, the Plaintiff and Defendant Cwing did not obtain consent from, or notify, Defendant Cwing Capital.

F. Commencement of joint management proceeding against the plaintiff

On December 21, 2009, the Plaintiff, which was amended by Act No. 8572 on Aug. 3, 2007, filed an application for joint management with the creditor financial institutions provided for in the former Corporate Restructuring Promotion Act (amended by Act No. 8572 on Dec. 31, 2010; hereinafter “former Corporate Restructuring Promotion Act”) after several revisions, filed an application for joint management with the creditor financial institutions as well as the procedures for joint management with the Plaintiff on December 28, 2009.

(g) Determination of the building schedule of a ship;

1) On May 3, 2010, the Plaintiff confirmed the building schedule of each of the instant vessels.

2) On May 24, 2010, the Plaintiff sent e-mail a 2010 boat table (which means the 201st 3rd 1 and the 1st wing plan table) indicating the building schedule of each of the instant vessels to Defendant Siwing on the e-mail. On July 1, 2010, the Plaintiff sent the 2010 boat table to the Defendant Siwing at the request of the Defendant, which is necessary for negotiations on the takeover of each of the instant vessels in progress on July 1, 2010. The scheduled date of steel cutting indicated in the 2010 boat table is as follows.

CSN-264 December 28, 201, 201, April 8, 201, 201, CSSN-267, Sept. 20, 2010, Nov. 5, 2010, CSSN-270, Nov. 5, 2010, 201

(h) Execution and notification of lectures by the Plaintiff;

1) Notwithstanding the aforementioned schedule, the Plaintiff notified Defendant CSN-267 on July 15, 2010 that he/she would undertake the steel cutting on the hull number CSN-267 vessel on July 30, 2010. Accordingly, on July 19, 2010, Defendant Cwing demanded that the scheduled date of the steel cutting will be maintained on September 20, 2010 according to the execution line table already sent by the Plaintiff, but the Plaintiff refused the steel cutting in order to meet the delivery date under the said revised contract, on the ground that the steel cutting began.

2) On July 30, 2010, the Plaintiff notified the Defendant at the time of cutting the cutting of the vessel with a hull number CSN-267 without the Defendant’s participation, and notified the Defendant of the fact of cutting the cutting of the steel with a confirmation document stating the signature of the American Ship Survey Officer’s signature on the American Ship Management Association (hereinafter “ABS”).

3) The Plaintiff, subject to the aforementioned procedure, performed steel cutting with respect to the remainder of the vessel other than the hull number CSN-267, notified the Defendant of the steel cutting.

On September 10, 2010, Sep. 10, 2010, CSN-266 Sep. 30, 2010, CSSN-267 July 30, 2010, on August 20, 2010, CSSN-270 on August 20, 2010, CSSN-27272, Oct. 20, 2010

I. The plaintiff's second demand to pay the second installment and the cancellation of the contract

After notifying the Plaintiff of the above fact, the Plaintiff requested payment of USD 3,875,000 for the second installment payment on each of the pertinent dates set forth in the table “the payment request date.” Defendant Cwing failed to pay the second installment by the due date notified by the Plaintiff, and the Plaintiff notified that Defendant Cwing delayed payment of the second installment payment on each of the pertinent dates set forth in the table “the payment date.” The Plaintiff notified the Plaintiff that Defendant Cwing delayed payment of the second installment payment on each of the pertinent dates set forth in the table “the payment date,” and notified the Plaintiff to the effect that each of the instant shipbuilding contracts will be rescinded on each of the relevant dates set forth in the “the payment date.” The above cancellation notice reached the Defendant Cwing at that time.

The notice of termination of the invoice number on September 17, 2010 on September 20, 2010 on September 20, 2010 on September 20, 2010 on September 20, 2010 on September 8, 2010: CSSN-266 on October 7, 2010 on October 8, 2010 on October 8, 2010 on October 20, 2010; CSSN-267 on July 30, 2010 on August 6, 2010 on August 23, 2010 on August 20, 2010 on August 23, 2010.

(j) Notification of the cancellation of the contract by Defendant KF Capital;

1) On the other hand, on July 28, 2010, prior to the Plaintiff’s taking part in cutting down hull number CSN-267 vessels, Defendant DB Capital notified the Plaintiff of the commencement of joint management procedures for creditors under the former Restructuring Promotion Act on July 28, 2010, as it falls under the grounds for nonperformance prescribed in Article 11(c) [referring to Article 11(c) of the instant shipbuilding Contract (Evidence 50; hereinafter the same shall apply], and when the procedures of Korea similar to the “wireding” or the dissolution, Defendant CB Capital concluded each shipbuilding contract of this case, and notified the Plaintiff of the fact that the Plaintiff’s first installment payment received from Defendant CW wing was revoked, and accordingly, the Plaintiff requested the return of the first installment.

2) In addition, on August 25, 2010, Defendant KF Capital notified the Plaintiff that the vessel was not built despite the delivery date under each of the instant shipbuilding contracts, or the vessel was anchored, constitutes either the Plaintiff’s failure to perform the obligations under each of the instant shipbuilding contracts, or the Plaintiff’s refusal to perform the obligations under each of the instant shipbuilding contracts. In addition, on the ground that it is difficult to expect that the obligations should be properly performed under such circumstances, the Plaintiff would rescind each of the instant shipbuilding contracts.

3) In addition, on August 30, 2010, Defendant KF Capital sent notice to the Plaintiff on the ground that the delivery date of a ship has not been completed within 180 days from the delivery date under each of the instant shipbuilding contracts, pursuant to Article 3 (a) (iii) of the shipbuilding contract, to the effect that the shipbuilding contract for the vessel with the hull number CSN-266 is rescinded. On October 5, 2010 and October 16, 2012, Defendant KF Capital notified the Plaintiff that all of the instant shipbuilding contracts will be rescinded on the grounds that the delivery of the vessel is delayed.

The date of notice of cancellation of the SSN-264 Ship Delivery Date contained in the main sentence, shall be October 16, 2012, October 30, 2012: CSN-266 February 28, 2010, August 30, 2010; CSSN-267 March 31, 2010; CSSN-270 August 31, 2010, October 31, 2012, CSSN-27272 on October 31, 2012.

(k) The Plaintiff’s material supply contract

On March 30, 2007, the Plaintiff entered into a sales contract with STX Engine Co., Ltd. on the main engine of each vessel listed in CNS-264, 266, and 266, and paid down payment as indicated in the table of attached Table 2 (ship material supply contract, etc.) with respect to each shipbuilding contract. However, as seen earlier, the Plaintiff sent notice to the effect that each of the relevant material supply companies listed in the same table “cancellation cancellation” in around May 7, 2010 was unable to pay after the second installment due to the Plaintiff’s failure to find the consignee of each shipbuilding contract.

E. Bankruptcy in the 21st century, the Defendant’s bankruptcy report, etc.

On June 17, 2013, Changwon District Court Decision 2013Hahap8, which was declared bankrupt on June 17, 2013, and the Plaintiff appointed as a bankruptcy trustee on the same day taken over the instant litigation procedure. Meanwhile, in the above bankruptcy procedure, the Defendant reported the claim for the refund of the purchase price, which is the object of the instant counterclaim, as a bankruptcy claim, as a bankruptcy claim, but the Plaintiff denied this.

[Ground of recognition] A-1-18, 28, 29, 31, 32, 34, 35, 41, 55-77, and Eul-1, 3, 4, 7, 11, 15-17, 27, 28, and 28 of the evidence (which include the number; hereinafter the same shall apply), Copi Copi Copi, Ltd, Chum Cown Co., Ltd, Chuma Cown Co., Ltd, Chuma Co., Ltd, Chuma Korea Co., Ltd, huleul, hulk Co., Ltd, hulek, and Korean Alphakn Co., Ltd., respectively, the purport of the entire arguments, the result

2. To arrange the arguments of the parties and the issues;

A. The plaintiff

1) Cancellation of a contract made by the Plaintiff on the grounds of delay in the payment of the second installment of the Defendant wing.

After having lawfully cut the Plaintiff, the Plaintiff filed a claim for the second installment payment in accordance with each of the instant shipbuilding contracts on the ground that the Defendant had not paid the second installment payment. Accordingly, the Plaintiff was liable for compensating the Plaintiff for damages exceeding the advance payment already paid. The Plaintiff did not have the duty to return the first installment payment to the Defendant Dri Capital.

2) As to the cancellation of the contract by Defendant KF Capital

Defendant KB Capital is not a party to each shipbuilding contract of this case, and thus cannot exercise the right of rescission, and all the grounds for rescission of the contract asserted below by Defendant KB Capital are unlawful and invalid. Therefore, Defendant KB Capital is not obligated to return the first installment payment paid by Defendant KW Capital to Defendant KB Capital.

B. The Defendants

1) As to the Plaintiff’s rescission of the contract on the ground of delay in payment of the second installment of the Defendant wing

The steel cutting alleged by the Plaintiff was not actually carried out, or was carried out formally in the absence of capacity to carry out the construction of each of the instant vessels, and the remaining vessels except for the hull number CSN-267 are not subject to prior notification as to the date of the second installment payment as stipulated in the contract. In addition, the Defendant wing was merely a special purpose corporation established and operated by the Plaintiff, and the Plaintiff led the instant loan contract. Accordingly, the Plaintiff, who is obligated to prepare each of the instant shipbuilding costs, was merely the Defendant wing, who was a mere a winger, was in the delayed payment of the second installment payment, thereby exercising the right to cancel each of the instant shipbuilding contracts in violation of the good faith.

2) Claim for the return of the purchase price following the cancellation of the contract by Defendant KF Capital

Therefore, the cancellation by the Plaintiff is not effective. Rather, each of the instant shipbuilding contracts was rescinded by Defendant Kab Capital, who transferred all the rights to the instant shipbuilding contract from the Plaintiff due to the Plaintiff’s cause attributable to the commencement of corporate restructuring procedures against the Plaintiff, the occurrence of grounds for refusing performance under the English law, and the delay in delivery of vessels. The Plaintiff is obliged to return the first installment payment paid by the Defendant Kab Capital to the Plaintiff.

C. Organization of issues

Under the premise that the rescission of each of the instant shipbuilding contracts on the ground of the delay in the second installment payments by the Defendant on the ground that the rescission of each of the instant shipbuilding contracts is valid, the Plaintiff’s defense and the instant counterclaim claim by the Defendants are premised on the validity of the cancellation of the Defendant’s rescission on the ground that the obligee’s joint management procedure commencement against the Plaintiff, the Plaintiff’s refusal of performance, or the delivery body against the Plaintiff. Therefore, the key issue of the instant claim is first whether the instant shipbuilding contract was lawfully rescinded by the Plaintiff and the Defendant Kab Capital, and second, the scope of the Defendant’s damage compensation or the Plaintiff’s restoration scope following the rescission of each of the respective shipbuilding contracts.

The following issues are judged in sequential order, but the cancellation of Defendant KF Capital according to the time order during which the cancellation was made is first examined, and the legality of the cancellation asserted by the Plaintiff and the scope of compensation for damage therefrom shall be determined.

3. Applicable law;

As seen earlier, each of the instant shipbuilding contracts was concluded between the Plaintiff and the Defendant Cwing, a corporation established and registered in the UK-Jaland. Each of the instant instant claims and the instant counterclaim was rescinded by the Plaintiff or the Defendant CFa Capital, on the ground that each of the instant contracts was rescinded by the Plaintiff or the Defendant CFa, the Plaintiff’s claim for damages against the Defendant CFa, the Plaintiff’s claim for the confirmation of the existence of the obligation against the Defendant CFa, or the claim for the refund of the purchase price against the Plaintiff of the Defendant CFa, and thus, the governing law should be set in accordance with the Private International Act due to foreign elements in the instant case.

Article 25 of the Private International Act provides that the contract shall be governed by the law chosen explicitly or implicitly by the parties, and since the contract for each of the shipbuilding of this case originally agreed on the governing law as the English law (it is confirmed at the third day of pleading in the first instance). In the event of an issue of interpretation of the contract of this case, the English law shall be the governing law.

However, regarding the interpretation of the security transfer contract of this case, Article 8.3 provides that the governing law of this case shall be the law of the Republic of Korea. Thus, in relation to the interpretation of the security transfer contract of this case, the law of the Republic of Korea shall be the governing law of this case.

4. Determination

In conclusion, the summary of the judgment contained in the main text is as follows. ① Defendant DB Capital is entitled to exercise the right to rescind each shipbuilding contract of this case pursuant to the instant collateral transfer contract. ② Defendant DB Capital’s rescission notice to the Plaintiff on July 28, 2010 on the ground of the commencement of joint management procedures by creditors prescribed in the former Restructuring Promotion Act against the Plaintiff, and the Plaintiff’s refusal of performance are all difficult to accept. On other premise, Defendant DB Capital’s counterclaim’s counterclaim claim is without merit. ③ However, the cancellation of each shipbuilding contract of this case on the ground that Defendant CW Capital’s second installment payment due to the Plaintiff’s steel cutting is legitimate. Furthermore, it is difficult to accept each of the instant shipbuilding contracts with the Plaintiff’s respective grounds for rescission of the contract of this case, which is the Plaintiff’s claim for cancellation of the contract of this case, and the Plaintiff’s claim for cancellation of the contract of this case is not acceptable. Accordingly, the Plaintiff’s assertion that each of the Defendants’ claim for cancellation of the contract of this case is unlawful or unreasonable.

A. Determination as to the cancellation of each shipbuilding contract of this case

1) As to whether Defendant KF Capital is entitled to exercise the right of rescission

A) The plaintiff's assertion

Defendant DF Capital merely taken over only the rights or interests under each of the instant shipbuilding contracts from Defendant CF capital and did not take over the status of the contracting parties. Since the right to cancel is a right accompanying the status of the contracting parties, the right to cancel is not transferred to Defendant DF Capital that did not succeed to the status of the contracting parties. Accordingly, Defendant DF Capital is not entitled to exercise the right to cancel under each of the instant shipbuilding contracts.

B) Determination

Since the right of rescission is accompanied by the contractual position, so long as Defendant Hand Capital did not take over the buyer status of each of the instant shipbuilding contracts from Defendant wing, it is alleged by the Plaintiff that the right of rescission under each of the instant shipbuilding contracts is not transferred. However, in full view of the following circumstances acknowledged by adding each of the entries and arguments in Articles 8 and 9 to the above facts, it is reasonable to interpret that the instant security transfer contract is a contract granting the right of rescission under each of the instant shipbuilding contracts, such as the right of rescission to each of the instant shipbuilding contracts, to Defendant Hand Capital’s own position. Accordingly, Defendant Hand Capital may exercise the right of rescission under each of the instant shipbuilding contracts in accordance with the agreement between the aforementioned parties (i.e., the Plaintiff’s right of rescission as the creditor of Defendant wing Capital is also entitled to exercise the right of rescission under each of the instant shipbuilding contracts as the obligee of Defendant wing Capital). Therefore, the Plaintiff’s aforementioned assertion is without merit.

① The instant collateral transfer contract was concluded to secure the claim for a loan to Defendant C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C-C

② Articles 4.4 and 4.5 of the instant collateral transfer agreement provide that “Defendant wing may not exercise or waive the right to rescission on each of the instant shipbuilding contracts without the prior written consent from the transferor,” and Article 6.1(c) of the instant collateral transfer agreement provides that “In the event Defendant wing did not perform the obligation under the instant loan agreement, Defendant wing may exercise all the right to each of the instant shipbuilding contracts, and Defendant wing shall take appropriate measures to ensure that Defendant wing still still has the right to rescission on each of the instant shipbuilding contracts.” As such, the language and text of the instant collateral transfer agreement is premised on the premise that Defendant wing still still has the right to rescission on each of the instant shipbuilding contracts, and thus, the term and text of the instant collateral transfer agreement are not “transfer,” not “transfer,” where the pertinent right is transferred from the transferor to the assignee, and thus, it appears natural to interpret that Defendant wing would naturally exercise the right to each of the instant vessel contracts to guarantee the payment of each of the instant claims in its own position.”

2) As to the legality of the notice of the cancellation of Defendant KF Capital on July 28, 2010

A) The defendants' assertion

Since the joint management procedures of creditor financial institutions under the former Restructuring Promotion Act (hereinafter referred to as the "workout") may take place as a procedure of dissolution, liquidation, or rehabilitation or bankruptcy under the Debtor Rehabilitation and Bankruptcy Act (hereinafter referred to as the "Integrated Bankruptcy Act"), which is the procedure of extinguishment of the company, according to the case of the joint management procedures of creditor financial institutions under the former Restructuring Promotion Act, this constitutes a case where a situation similar to the "wired Group" or "drick" under Article 11 (c) of each of the shipbuilding Contracts of this case occurs, and due to such a circumstance, the plaintiff lost the ability to build each of the vessels of this case, and thus, the defendant Dan Capital will rescind all of the shipbuilding contracts of this case under Article 11 (c) above.

B) Determination

Considering the aforementioned facts and the purport of the entire arguments as seen earlier, the cancellation on July 28, 2010 by Defendant KF Capital Capital on the ground of the workout program against the Plaintiff does not meet the requirements of Article 11(c) of the instant shipbuilding agreement, and the period of the exercise under Article 11(d) of the instant shipbuilding agreement was set aside, and thus, it is unlawful, as seen earlier, inasmuch as the period of exercise under Article 11(d) of the instant shipbuilding agreement

(1) Whether the workout program is a procedure similar to “wired Group” or “dis”

First of all, with regard to whether the workout program under the former Restructuring Promotion Act constitutes a procedure similar to the “wired Group” or “Dis” under Article 11(c) of each of the instant shipbuilding contracts, it cannot be deemed that the workout program is similar to the “wired Group” or “Dis”, considering the following:

① The term “widing Group” or “DS” is a procedure to extinguish an enterprise by selling all its assets and distributing the remaining assets to shareholders and other members after repaying the creditors’ obligations to the creditors. On the other hand, the workout program is intended to improve the financial structure of the enterprise and to normalize the management of the enterprise through a resolution of the creditor bank council, etc. by requesting the principal creditor bank by the company showing signs of insolvency to commence through a resolution of the creditor bank council, etc. In other words, the term “wid Group” and “DS” are premised on the suspension of its business. However, the workout program is not a procedure to discontinue the business activities of the enterprise, but rather to promote the restructuring of the enterprise with the assistance of creditor financial institutions

(2) In addition, according to Article 7(2) and (3) of the former Restructuring Promotion Act, where the relevant company has no possibility of business normalization, the principal creditor bank, etc. may request the relevant company to dissolve or liquidate the relevant company, or file an application for bankruptcy or bankruptcy in accordance with the Integrated Bankruptcy Act, or file an application for rehabilitation proceedings. As such, in order to proceed with the procedures for dissolution, liquidation, bankruptcy, rehabilitation, etc., which are the procedures for the extinguishment of the company (hereinafter “Dissolution, etc.”), a separate request or application by the principal creditor bank, etc. is necessary. As such, the workout procedure is different from the procedures for dissolution, etc., which are clearly distinguishable from those for dissolution, etc.

(3) As pointed out by the Defendants, it may be possible to proceed with the procedures for dissolution, etc. in the workout process. However, it is not necessarily going through the procedures for dissolution, etc. in the workout process, and it is possible to proceed with the procedures for dissolution, etc. in the event that management normalization is impossible due to its poor financial structure, the workout procedure cannot be deemed as falling under the procedures similar to “wired Group” or “dis”.

(2) The extent of the exercise period of the right of rescission; and

In addition, as seen earlier, Article 11(d) of each of the instant shipbuilding contracts provides that, in the event of cancellation on the grounds of “wired Group” or “dis”, the right shall be extinguished if it is not exercised within two weeks from the time when such grounds arise. However, on July 28, 2010, it is apparent that the period from December 28, 2009, when two weeks have elapsed from the commencement of the workout program to the Plaintiff, it is apparent that Defendant Dan Capital had exercised its right to rescission on the grounds of the workout program against the Plaintiff.

(3) Whether the plaintiff lost the plaintiff's ability to build a ship

In addition, as seen in the items of “3(3) judgment”, it cannot be readily concluded that the Plaintiff lost the ability to build each of the instant vessels on the ground that the procedures for the workout began with respect to the Plaintiff, as seen below.

3) As to the legality of the notification of the cancellation of the Defendant KF Capital on the ground of the Plaintiff’s refusal of performance on August 25, 2010

A) The defendants' assertion

The following circumstances revealed that the Plaintiff renounced the construction of each vessel of this case, and that the Plaintiff did not have the capacity to build each vessel of this case. ① The Plaintiff did not perform any act for the construction of each vessel during the period from the conclusion of each shipbuilding contract to the establishment of the workout procedure. ② Each of the instant steel cutting was merely conducted for the purpose of not actually performed or solely avoiding the Plaintiff’s responsibility for delivery, and making the second installment payment due date. At the time of the steel cutting in this case, the authorization and preparation of the hull structure drawings (basic drawings, detailed drawings, and production drawings) which were essential in advance to perform the construction and cutting of the vessel was not made, and the engine, the core of the shipbuilding was the situation where the vessel was revoked without being ordered. ③ The Plaintiff did not have the ability to procure each of the instant vessels of this case, and the engine was abandoned in the work process due to the failure of creditor financial institutions to obtain their consent.

B) The exercise of the right of rescission on the ground of non-performance under English law

In addition to the right to rescind a contract granted under a contract, the parties to the contract may have the right of rescission under the common law due to breach of the contract. Among them, the right to rescind a contract based on a refusal of performance refers to the right to terminate the contract by deeming the contractual performance to be refused in cases where the extent of nonperformance of the other party to the contract is so remarkable that the other party to the contract is deprived of a substantial part of the contractual interests of the other party to the contract. Such refusal of performance under the English law is not recognized only when the obligor refuses or is unable to perform the contract, but also when the obligor deems that there is no intention to perform the contract by objectively examining the circumstances, it may be recognized when the obligor delays the performance of the obligation intentionally

C) Determination

In light of the following circumstances, Gap evidence 6, Eul evidence 12, Eul evidence 17, 18, and 31, and the testimony and arguments of non-party 4 of the party witness non-party 4 as a whole, the plaintiff cannot be deemed to have renounced the date of delivery because the construction of each of the vessels of this case was impossible due to the execution of the workout procedure, or that the construction of each of the vessels of this case was conducted in a false manner without any intention or ability for the construction of each of the vessels of this case. Therefore, in this case where there is no ground to believe that the right of rescission under English common law has been granted, the cancellation of the defendant defendant's bar clock on the ground of non-performance under English common law cannot be accepted without further review.

(1) Whether the date of delivery has lapsed without doing any act for shipbuilding a ship

The fact that each of the instant shipbuilding contracts was concluded in the middle of June 2007 by the end of October of the same year, but no cutting was made until approximately three years passed from that date. The fact that, around August 25, 2010, around August 25, 2010, the vessel’s number CSN-266, and 267 was considerably past the scheduled date for delivery under the original shipbuilding contract, and the remaining vessels were left for about 3,4 months.

However, on May 3, 2010, the Plaintiff notified the Defendant of the specific shipbuilding schedule for each of the instant vessels, as seen earlier, concluded each of the instant shipbuilding contracts, and paid each of the down payment, including an essential engine for the construction of a vessel immediately thereafter. The Plaintiff’s delay in delivery of each of the instant vessels also appears to have been attributable to the fact that the Plaintiff failed to commence the construction of a vessel in accordance with the date of delivery of the instant shipbuilding contract, on the ground that the Plaintiff did not perform any act for the construction of each of the instant vessels, and the date of delivery under the original shipbuilding contract cannot be deemed to have exceeded the delivery date without justifiable grounds, since the Plaintiff did not perform any act for the construction of each of the instant vessels.

(2) Execution of the instant cutting

In addition, comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence, each cutting of the instant case was not actually carried out, or was carried out for the purpose of deceiving the Defendants without genuine shipbuilding intent. Rather, efforts to maintain the instant shipbuilding contract despite the external proposal to exclude the Defendants from the process of normalizing the shipbuilding contract, and the Plaintiff was finally making efforts to maintain the instant shipbuilding contract at the time of determining whether to maintain the instant shipbuilding contract, and the Plaintiff continued to make a second installment payments for Defendant 2 at the time of making a decision on whether to maintain the instant shipbuilding contract. In order to determine whether to maintain the instant shipbuilding contract, it appears that the Defendant 20 N-267 vessel was forced

① Unless there is any evidence as to the fact that the ABS certificate was prepared in a false manner, it cannot be readily denied the fact that the Defendants conducted force-off operations, which are proven by the above certification, solely on the grounds that the Defendants cited.

② According to the evidence No. 6’s video, the fact that the specifications of each of the instant vessels was somewhat erroneous on the banner at the steel cutting site. However, according to the evidence Nos. 12, 17, 18, and 31, the Plaintiff, despite having been presented a scheme to normalize the management of the content of the vessel excluded from each of the instant shipbuilding contracts by ○○ Accounting Corporation at the end of March 2010, it can be acknowledged that the Plaintiff tried to maintain each of the instant shipbuilding contracts to the maximum extent possible while reviewing the scheme to change the specifications of each of the instant vessels from 13,00DW to 34,00DW around the end of March 2010. The above description appears to be a clerical error arising from the process of examining the specifications of the vessel.

③ In a case where the purchaser of a ship is an end user, all different drawings are prepared for each ship, reflecting the buyer’s requirements as alleged by the Defendants. However, as seen in each shipbuilding contract, if the purchaser is an intermediary or intermediate buyer for the purpose of repurchase of a ship, not an end user, it does not seem that the specific individual drawings are prepared for each ship even in such a case. Therefore, if there is an agreement to use the previous drawings of a ship built in the same manner as the subsidiary agreement in this case, the Plaintiff may build a ship using the previous drawings as it is, and there is no ground to limit the scope of the drawings available for this case’s use to the basic drawings. In addition, the basic drawings of No. 44, and detailed drawings of No. 45-49, which were submitted by the Plaintiff, are stated as each ship of this case. Accordingly, the completion of cutting of a building in this case is not based on the aforementioned subsidiary agreement, but based on the drawings of this case’s drawings.

④ Inasmuch as the Plaintiff and Defendant Cwing intent concluded that all of the five vessels of this case were to be built in the same straw and the same straw, the agreement on the use of the express design drawings, such as the agreement on the subsidiary design, in relation to each vessel of this case, applies to each vessel of this case, even though there was no agreement on the use of the aforementioned express design drawings, as to each vessel of this case.

⑤ In light of the fact that the Plaintiff’s revocation of a partial purchase contract of each of the above materials supply contracts concluded by around May 7, 2010 for the construction of each of the instant vessels, the Plaintiff actively endeavored to maintain each of the instant shipbuilding contracts until the end of March 2010, but thereafter, the Plaintiff appears to have lost its desire to some extent for the maintenance of each of the instant shipbuilding contracts.

그러나, 앞서 본 사실에 갑 제42호증의 기재 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정 즉, ㈀ 일부 자재구매계약을 취소하기 직전인 2010. 5. 3. 이 사건 각 선박의 건조 일정이 확정되었고, 이후 2010. 7. 1. 그 일정이 재통보될 때까지도 위 건조 일정이 유지되고 있었던 점, ㈁ 선박의 핵심기관인 엔진의 구매계약에 관하여는 이를 취소하였다고 인정할 아무런 증거가 없는 점(피고들은 을 제22호증이 엔진공급계약을 취소하는 통지서라고 주장하나, 을 제22호증은 그 수신인이 전혀 특정되지 않으므로 그렇게 볼 수는 없다), ㈂ 이 사건 각 선박의 건조를 위하여 1,800여 쪽이 넘는 기본도면, 상세도면이 준비되어 있었던 점, ㈃ 일부 부품들은 이미 제작이 완료되어 원고가 해당 자재구매계약을 취소한다는 통지를 하였다고 하더라도 그 통지대로 효력이 발생하지 않을 것이고 원고의 요청에 의하여 언제든지 이 사건 각 선박의 건조를 위하여 인도될 수 있었던 상황으로 보이는 점, ㈄ 원고에게 이 사건 각 선박의 건조를 위한 강재가 준비되어 있었던 점(피고들은 강재검사증명서에 해당 강재가 사용될 선체번호가 수기로 기재되어 있으므로 이를 이 사건 각 선박 건조를 위한 강재로 보기 어렵다고 주장하나, 어떤 강재가 어떤 특정한 선박의 건조를 위하여 사용될 목적으로 입고되지 않은 이상 일반적으로 조선회사는 당시 조선소에 입고되어 있는 강재를 사용할 수 있다고 보이므로, 원고에게 입고된 강재검사증명서에 선체번호가 수기로 작성되었다는 등의 사정은 원고의 이 사건 각 선박 건조 능력 및 의사를 판단하는데 아무런 영향을 미치지 않는다) 등을 종합하면, 위와 같은 자재공급계약의 일부 취소에도 불구하고 당시 원고에게는, 2010. 3. 말 이전과 비교하여서는 약화되기는 하였으나, 여전히 이 사건 각 선박건조계약을 지속하고자 하는 의사 및 선박 건조능력이 있었다고 보인다.

(6) However, as alleged by the Defendants, the Plaintiff’s cancellation of a partial material purchase contract, and there is no doubt as to the motive for the Plaintiff to conduct a steel cutting on the instant vessel prior to the scheduled shipbuilding volume of 2 months notified by himself, and the steel cutting on the said vessel appears to have been done formally to a certain extent. However, in full view of the aforementioned facts and the overall purport of oral arguments, the Plaintiff prepared for the construction of each of the instant vessels by setting the specific shipbuilding schedule and drawing the basic drawing, etc., on the other hand, despite the Defendant’s argument that the negotiations on the acceptance of each of the instant shipbuilding contracts are underway, the Plaintiff seems to have been doubtful to a certain extent regarding the possibility of accepting each of the instant shipbuilding contracts and executing each of the instant shipbuilding contracts. Accordingly, the Plaintiff appears to have executed the steel cutting for the purpose of finally determining whether to continue the each of the instant shipbuilding contracts, and if so, it is difficult to conclude that each of the instant shipbuilding contracts was executed with the intent of inducing the Defendants by fraudulent or fraudulent intent to construct the vessel (i.e., each of the instant agreements)., each of this case.

(3) Whether the construction of a ship was impossible or abandoned due to the procedures for the workout program

The Plaintiff, as of the end of 2009, failed to liquidity due to enormous losses caused by the decline of vessel owner due to the operation of derivatives, such as kico, etc., and entered the workout process on December 28, 2009; there is no evidence to deem that there was an explicit consent of creditor financial institutions regarding the continuation of each shipbuilding contract of this case; and the fact that the Plaintiff’s management normalization program was excluded from each shipbuilding contract of this case, which was included in the On-Site Report (Evidence No. 18) prepared during the workout program of March 26, 2010 by the ○○ Accounting Corporation on March 26, 2010, is alleged by the Defendants.

However, considering the following circumstances that can be seen by comprehensively taking account of the overall purport of arguments as seen earlier, it cannot be deemed that the Plaintiff was incapable of building each of the instant vessels due to the procedures for the workout, or the Plaintiff renounced the construction of each of the instant vessels (However, the fact that each of the instant shipbuilding contracts was not included in the review report (Evidence No. 13) prepared in 2011 by an accounting firm (Evidence No. 13) is attributable to the Plaintiff’s rescission of each of the instant shipbuilding contracts as follows).

① The management normalization scheme contained in a report prepared by ○○ Accounting Corporation is merely a report prepared by ○○ Accounting Corporation, an external institution, and it is difficult to regard it as an expression of intent by the Plaintiff. The above scheme is merely a proposal for the management normalization of the Plaintiff, and it is not a final and conclusive plan for management normalization.

② In fact, notwithstanding the aforementioned management normalization scheme prepared by ○○ Accounting Corporation, around the end of March 2010, the Plaintiff tried to maintain each shipbuilding contract of this case by reviewing the method of changing the formation of each of the instant vessels from 13,00DW to 34,00DW, and on May 3, 2010, the Plaintiff determined the enforcement vessel list containing the building schedule of each of the instant vessels, and, at least until July 1, 2010, prepared a design plan including the basic drawing for each of the instant vessels, while maintaining the aforementioned plan by July 1, 2010.

③ The reason why ○○ Accounting Firm excluded from the management normalization scheme of each of the instant shipbuilding contracts is that the Plaintiff was in a situation in which the Plaintiff could not construct each of the instant vessels, since the Defendant 2, the buyer, had difficulty in raising funds.

④ As to each shipbuilding contract of this case, R/G had already been issued, there was no need to obtain prior approval from creditor financial institutions for the continuation of each shipbuilding contract of this case. Therefore, the Plaintiff appears to have been able to use the Plaintiff’s 100 billion won supported by creditor financial institutions for the construction of each vessel of this case according to the Plaintiff’s decision.

⑤ The Plaintiff completed delivery by building three vessels in 2009, six vessels in 2010, and six vessels in 2011.

4) The legality of the removal of Defendant Kavi Capital on the ground of the delay in delivery of the vessel

Comprehensively taking account of the following circumstances revealed through the purport of the entire arguments, the Plaintiff cannot set up against Defendant KF Capital due to the due date extended to Defendant CF Capital. However, insofar as the payment of the cost for each of the instant shipbuilding contracts was not made on the ground of the Defendant’s liability, the delivery date of the vessel pursuant to Article 11.2.2.(a) of the Ship Construction Contract shall be automatically extended pursuant to Article 11.2.2.(a) of the Ship Construction Contract. Thus, the Defendants cannot be deemed to have the right to cancel due to the delayed delivery of the vessel under Article 8(c) of the Ship Construction Contract. Accordingly, the exercise of the right to cancel the Defendant

A) Whether it is possible to oppose Defendant KF Capital by the delivery date extended to Defendant KF Capital

Under the instant collateral transfer contract, the Plaintiff and the Defendants agreed not to amend or supplement the instant shipbuilding agreement without the prior written consent of Defendant KaB Capital, and the Plaintiff and Defendant agreed that the instant shipbuilding agreement would modify the sales price and delivery date of each of the instant shipbuilding agreement without the prior written consent of Defendant KaB Capital. Accordingly, the Plaintiff and Defendant wing violated the instant collateral transfer agreement, and thus, the Plaintiff cannot set up against Defendant KaB Capital on the date of delivery.

B) Whether the Plaintiff delays delivery

Article 8 (c) of the shipbuilding contract of this case provides that the buyer may exercise the right of rescission if there is a delay in delivery exceeding 180 days from the date of delivery, but in its nature, the buyer cannot exercise the right of rescission on the ground of such delay in delivery if the delivery date is extended due to the buyer's default (Buyer's defure). Articles 11.1 and 11.2 (a) of the shipbuilding contract of this case provide that the buyer may not exercise the right of rescission on the ground of such delay in delivery. In this case, the delivery date is automatically extended as much as the date the buyer delayed the payment. In light of the nature of each installment of this case and the intent of the parties to the payment date as recognized earlier, if the commencement of the above procedure is delayed due to the reasons for the buyer's default, and therefore, the delivery date is automatically extended in accordance with Article 11.2 (a) of the Building Act. Therefore, it cannot be deemed that the delivery date of the Plaintiff's rescission to the Defendants.

5) As to the legality of the Plaintiff’s rescission

A) The arrival of the second installment payment date - whether the second installment payment has been made or not.

(1) Summary of the defendants' assertion

① On the banner on which the steel cutting site of this case was taken, it is indicated as the 34,000DW WT product transport line, not the 13,000DW WT product transport line of each of the vessels of this case. ② The basic drawing and detailed drawing have to be installed before the cutting in order to cut the steel; ③ there is no such drawings on each of the vessels of this case; ③ even if there is the annexed agreement of this case, it is merely an agreement on the basic drawing of each vessel of this case; ④ even if there was the annexed agreement of this case, it was not ordered for the engine which is an essential part for the construction of each vessel of this case, and the other material supply contract was revoked by the plaintiff before the steel cutting. ⑤ Since the confirmation document of ABS cooperates with the plaintiff, there is no credibility, the steel cutting of this case actually did not come from the due date of the payment of the plaintiff's 2nd installment without the plaintiff's genuine intent to construct the vessel of this case.

(2) Determination

The aforementioned assertion by the Defendants is ultimately based on the premise that the steel cutting, which is the date of the second installment payment, should be duly conducted, inasmuch as the steel cutting was not genuine by the Plaintiff’s intent to build a vessel, and thus is false or formal.

However, as determined earlier, the fact that each of the steel cuttings in this case was not actually carried out or cannot be deemed to have been carried out for the purpose of deceiving the Defendants without the genuine intent to build a vessel. Furthermore, even if the steel cutting was carried out in a certain form, it cannot be deemed that the date of payment for the second installment set forth in each of the shipbuilding contracts in this case as argued by the Defendants does not arrive at.

In other words, where a shipbuilding contractor delays delivery of a vessel under a contract for the purchase and sale of the vessel, he/she may be entitled to protection of the right by means of reduction of the price or cancellation of the contract (Article 8 of each shipbuilding contract of this case). If the purchaser of the vessel is suspected of the authenticity of the shipbuilding contractor in the initial stage of shipbuilding, and thus may not pay the installments, there is a lot of disputes related thereto. In this sense, “no purchaser may delay or withhold the payment of the installments, regardless of any dispute between the parties concerned,” the last sentence of Article 10(b) of each shipbuilding contract of this case does not state the intent of the parties to take into account whether the payment of the installments was made specifically and practically in each of the relevant procedures at each stage of payment of the installments. Accordingly, it shall be deemed that the second installment payment date for the shipbuilding contractor’s notification and the second installment payment date for the vessel purchaser’s pre-paid payment at each stage of shipbuilding. This conforms with the interpretation of the English Supreme Court’s interpretation that the Defendants could not be aware of the meaning and the meaning of the bill of the bill.

After the Plaintiff’s implementation of the instant steel cutting, the Plaintiff notified the Defendant wing of the instant steel cutting along with a written confirmation of ABS. Therefore, in the instant case, it cannot be deemed that each of the instant steel cutting was conducted formally to a certain extent, solely on the ground that each of the instant steel cutting was conducted for the purpose of deceiving the Defendant wing without a genuine intent to construct a vessel. It cannot be deemed that the date for the payment of the secondary installment payment stipulated in each of the instant shipbuilding agreement has not yet arrived. This part of the Defendants’ assertion is groundless.

B) Whether contract termination procedures are complied with

The Defendants asserted to the effect that, with respect to the second installment of the vessel other than the vessel’s hull number CSN-267 vessel, the Plaintiff did not give prior notice 14 days prior to the shipbuilding contract of this case, and thus, the Plaintiff’s cancellation was unlawful because it did not comply with the procedures required by each shipbuilding contract of this case.

In the records, there is no direct evidence to acknowledge that the Plaintiff notified the Defendant of the date of the second installment payment of the remainder of the vessel except for the hull number CSN-267 vessels. However, in light of the overall purport of the entries and arguments in the evidence Nos. 3 and 15, it can be sufficiently confirmed that the Plaintiff was faced with steel cutting in excess of the schedule on the front line sent to the Defendant at the time of the Plaintiff, and that the Plaintiff would have asked the Defendant to take part in the fleet, and that the second installment payment due to steel cutting would have arrived at the date of the second installment payment, so long as the Plaintiff notified the Defendant of the date of the second installment payment, even if the Plaintiff did not explicitly indicate that the second installment payment date was the date of the second installment payment, it can be deemed that there was prior notice on the second installment payment payment.

Even if the Plaintiff omitted the aforementioned prior notification procedure, the purport of the said provision demanding the Plaintiff to notify the Defendant wing Co., Ltd., who is the obligor for installment payments, of the time for the payment of the said funds. However, considering that the Plaintiff’s repeated notification of the payment date after the steel cutting was made, and that the period of approximately one month from the date of the first notification of the payment to the date of the cancellation is not shorter than a short period, the cancellation is not deemed unlawful solely on the ground that the Plaintiff omitted prior notification of the payment date.

C) As to whether the good faith principle is violated

(1) Defendant KF Capital’s assertion

① The Plaintiff’s substantial manager leased the name from Nonparty 6 to the Defendant 6, and the actual owner of the Defendant wing was the Plaintiff’s director Nonparty 3, and thus, the Plaintiff actually decided on the instant shipbuilding contract. ② The Defendant’s loan to the Defendant wing wing was made upon Nonindicted 5, etc.’s active request. ③ The Plaintiff’s joint and several guarantee for the instant loan to the Defendant wing wing wing Capital was eventually undertaken by the Plaintiff. Accordingly, each of the instant shipbuilding contract was in progress. Accordingly, the Plaintiff was obligated to prepare the instant shipbuilding contract. Accordingly, the Plaintiff was not entitled to cancel each of the instant shipbuilding contract on the grounds that the Plaintiff, who was obligated to prepare the shipbuilding fund, failed to procure funds due to the Plaintiff’s failure to find the buyer, and delayed payment of the second installment.

(2) Determination

The fact that the actual manager of the Plaintiff was Nonparty 5, the fact that the actual owner of the Defendant wing was Nonparty 3, the fact that Nonparty 3 was the director of the Plaintiff’s five major shareholders, and the fact that the Plaintiff jointly guaranteed the instant loan agreement. However, such circumstance alone is insufficient to recognize that the Plaintiff actually built the wing, or that Nonparty 5 was in a position that could affect Nonparty 3, and there is no other evidence to acknowledge that the Plaintiff voluntarily proceeded with each of the instant shipbuilding contracts. Accordingly, this part of the claim of the Defendant wing Capital, which was premised on the premise that the Plaintiff was proceeding with each of the instant shipbuilding, is without merit.

6) Cancellation of each of the instant shipbuilding contracts

Therefore, each shipbuilding contract of this case was terminated by the Plaintiff’s declaration of intent to cancel the contract on the grounds of delay in the payment of the second installment of the Defendant wing.

B. Determination on the Plaintiff’s claim for damages against Defendant Cwing

1) Summary of the Plaintiff’s assertion

The plaintiff suffered losses from the non-performance of each of the instant shipbuilding contracts, namely, USD 19,375,00 ($ 3,875,000 for each of the instant vessels) due to the non-performance of each of the instant shipbuilding contracts, i.e., USD 19,375,00 for losses ($ 3,875,00 for each of the instant vessels) and KRW 5), and KRW 7,652,330 for each of the instant shipbuilding contracts, and KRW 7,652,30 for each of the instant vessels, and KRW 18,00 for each of the instant vessels ($ 18,52% for each vessel) and KRW 112,50 for each of the instant shipbuilding contracts, and KRW 308,636,00 for each of the instant shipbuilding contracts, and KRW 200 for damages from the total amount of KRW 100,000 for each of the instant vessel and KRW 200 for each of the instant vessel.

2) Determination

A) Terms and conditions of each shipbuilding contract of this case for damages

Article 11.2 (f) of the shipbuilding agreement of this case provides that when the shipbuilding contract is rescinded due to the buyer's default, the buildinger shall be entitled to reasonably expected profit, including profit, and to appropriate the installment already paid for losses and losses, and the buyer shall be liable to pay the shortage to the buildinger if the installment falls short of compensation for losses.

B) As to the second installment damages

If the Plaintiff seeks compensation for damages on the premise that each of the instant shipbuilding contracts is maintained, then the Plaintiff’s assertion is without merit, as long as the instant shipbuilding contracts were rescinded as seen earlier. In addition, in order to seek damages for which the amount equivalent to the second installment would not be received due to the rescission of each of the instant shipbuilding contracts, there is no evidence to acknowledge that the Plaintiff otherwise suffered damages equivalent to the second installment payments in the instant case where the Plaintiff did not present any specific ground under English law. The Plaintiff’s assertion on this part is difficult to accept.

C) As to operating profit losses

The evidence No. 39, which states that the operating income per ship is 8.52% of the purchase price (the statement of contract price) is indicated as USD 18,000,000 in a document which did not obtain approval from anyone. The time when the purchase price of each ship has been changed from USD 25,000 to USD 18,000. The time when the purchase price of each ship was changed from USD 25,000 to USD 18,000 on June 1, 2008 as indicated on the date of the preparation of the above document is as of November 10, 2009, which was 15 months after June 1, 2008. Thus, it is difficult to believe the contents of the above document on operating income as it is merely a newspaper article, and therefore, it is insufficient to deem that the Plaintiff’s operating income reaches 8.5% per ship. There is no other evidence to acknowledge that each of the shipbuilding contracts of this case is reasonably anticipated income.

D) As to commission commission and damages arising from the expenditure of material and facilities

Comprehensively taking account of the respective descriptions of evidence Nos. 29, 37, and 44 and the overall purport of the pleadings, the fact that the Plaintiff paid USD 112,500 in total to the brokerage commission for concluding a shipbuilding contract on October 5, 2007 for the vessel’s vessel number CSN-26, 267, and 267. The fact that the Plaintiff entered into a shipbuilding contract for each vessel of this case and paid the down payment equivalent to KRW 3,087,636,00 in total, but did not receive the down payment due to the cancellation of the contract.

E) Calculation of damages

Therefore, the damages suffered by the Plaintiff due to the Plaintiff’s nonperformance of the obligation of Defendant Cwing amounting to USD 112,50 and USD 3,087,636,00 (i.e., USD 2,684,90, USD 1:1,150 according to the Plaintiff’s calculation, and USD 2,797,400 ($ 12,500 + USD 2,684,900) when the total amount is converted into USD 12,500 ($12,500) and the total amount paid by the Plaintiff does not exceed USD 12,50,000.

In addition, in the instant case where there is no basis to evaluate the amount equivalent to the above second installment amount as damages, even if the Plaintiff recognized all damages of USD 7,652,30,00 in total, five 8.52% operating income per vessel alleged by the Plaintiff, the total amount of damages incurred by the Plaintiff is clear that it does not exceed USD 10,449,730 ($ 2,797,400 + USD 7,652,30) and the total amount of damages paid by the Plaintiff does not exceed USD 12,50,000 in total.

3) Therefore, it is not recognized that Defendant wing is liable for additional damages.

G. Cancellation of each shipbuilding contract of this case and the legal relations pertaining thereto

As can be seen, each of the instant shipbuilding contracts was rescinded by the Plaintiff on the ground of the Defendant’s nonperformance of the obligation, and the Plaintiff did not have a duty to return USD 12,500,000 in the aggregate of the first installment payments already received by the Plaintiff to Defendant DF Capital. As long as Defendant DF Capital contests disputing the existence of the said obligation, the Plaintiff had a legal interest in seeking confirmation of the non-existence of the said obligation even if the Plaintiff filed a counterclaim against the Plaintiff (see Supreme Court Decision 2010Da2428, Jul. 15, 2010).

5. Conclusion

Therefore, the plaintiff's main claim against the defendant KF Capital is justified, and the plaintiff's claim against the plaintiff for wing is dismissed as it is without merit. Since the judgment of the court of first instance as to the plaintiff's main claim against the defendants is just in conclusion, the plaintiff's appeal is dismissed, and the plaintiff's counterclaim against the defendant KF Capital that has been changed in exchange at the court of first instance due to the lack of justifiable grounds, and it is so decided as per Disposition.

[Attachment]

Judges Noh Tae-il (Presiding Judge) Constitution

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(2) In the interest of the Fund from the Chairperson of the Bank of Korea, to be from the Fund of the Bank of Korea, the end of the contract shall be from the end of the contract to be held by the Bank of Korea to be held by the Bank of Korea. The end of the contract to be held by the Bank of Korea to be held by the Bank of Korea to be held by the Bank of Korea, the end of the contract to be held by the Bank of Korea to be held by the Bank of Korea.

Note 3) Although described in subsection (c) of the contract, it appears to be a clerical error in light of the overall structure and the order of number of the items. The following subsection (d) shall also apply:

주4) The Builder shall be deemed 새 be in default of its obligations under this Contract if order is made against the Builder or an effective resolution for winding up or dissolution of the Builder is passed (except in all cases for the purpose of reorganization merger and amalgamation) or anything in Korea analogous thereto occurs and it is deemed the Builder is unable to continue to perform its obligations under this Contract thereafter.

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